My Cousin Vinny And Discovery In Virginia Criminal Cases

Posted on October 17th, 2012, by Benjamin Griffitts in Criminal Defense. Comments Off

There’s a great scene in the movie “My Cousin Vinny” where attorney Vinny Gambini carries in a box of files after meeting with the district attorney, proud that he had convinced the D.A. to turn over his case file. Vinny’s fiancée, Lisa, informs him that he was entitled to the files all along, stating “he has to show you everything.”

When I represent someone accused of a crime, regardless of whether it is a felony or a misdemeanor, a robbery or running a red light, I am generally asked whether the prosecutor has shown me everything in the file. In Virginia criminal cases this process is called discovery, roughly defined in Barron’s Law Dictionary as the “pretrial procedure by which one party gains information held by another party; the disclosure by a party of facts, deeds, documents, and other such things,” and the rules are much different than the rules that governed the court in the movie. In fact, the Virginia Supreme Court, citing the United States Supreme Court, has stated that “[t]here is no constitutional right to discovery in a criminal case.” Watkins v. Commonwealth, 229 Va. 469, 479 (1985).

So is the accused entitled to anything? Yes, but the information that a prosecutor is obligated to provide is governed by the Rules of the Supreme Court of Virginia. It also depends on whether a person’s case is in district court or circuit court. In General District Court, where traffic infractions, misdemeanors and felony preliminary hearings are held, Rule 7C:5 applies: an accused or an attorney on the accused behalf may request the prosecution to divulge “(1) any relevant written or recorded statements or confessions made by the accused, or copies thereof and the substance of any oral statements and confessions made by the accused to any law enforcement officer; and (2) any criminal record of the accused.” That’s it. In Juvenile and Domestic Relations District Court, adult defendants are governed by the same rule, but juvenile defendants are not entitled to receive their criminal or delinquency history!

In Circuit Court where felonies and misdemeanor appeals are tried, Rule 3A:11 applies, and the accused person or their attorney are entitled to statements or confessions, but also “written reports of autopsies, ballistic tests, fingerprint analyses, handwriting analyses, blood, urine and breath tests, other scientific reports, and written reports of a physical or mental examination of the accused or the alleged victim made in connection with the particular case,” as well as “designated books, papers, documents, tangible objects, buildings or places, or copies or portions thereof… upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable.”

While the law states that the Constitution does not guarantee discovery, the U.S. Supreme Court, in Brady v. Maryland, 373 U.S. 83 (1963), did find that an accused’s due process rights would be violated if the prosecution did not disclose “exculpatory evidence,” that is, according to Barron’s, evidence or statements that would “tend to clear, justify, or excuse a defendant from alleged fault or guilt.” So in addition to the evidence from Rule 3A:11, prosecutors in Circuit Court cases are obligated to produce information that would tend to show the accused’s innocence, or impeach a witness for the prosecution, or even mitigate the punishment the accused may face. That is certainly more information, but far from the notion that we can see everything they have.

The good news is that many jurisdictions in Virginia are adopting an “open file” discovery policy, which looks a lot like the disclosure Vinny received in the movie. This allows the prosecutor and defense attorney to lay their cards on the table and get to the heart of the matter without leaving the defendant feeling like they are a pawn in a cruel game.

Lisa, Vinny’s girlfriend, ends the exchange by asking sarcastically, “they didn’t teach you that in law school either?” My answer to that is no. Defending someone accused of a crime, however slight or serious, is not as simple as knowing information taught in law school classrooms, nor as easy as it looks in the movies and on television. Information is not handed out on silver platters. Properly representing a person accused of an offense requires hard work, preparation and diligence, regardless of the cooperation level of the prosecutor.

Ben Griffitts is a senior associate attorney at Livesay & Myers. An attorney since 2004, he has years of experience defending clients on criminal charges in Northern Virginia—from serious felonies, violent crimes, and drug charges to traffic offenses and misdemeanors. As an experienced personal injury attorney, he has also handled every type of automobile accident case in Virginia.